When I talk to employers, and to workers, some of them tell me they want right to work laws in Ontario. But not very many.

Hudak & Hillier: The Art of Mixed Messaging? (Photo: Toronto Star)

For every worker or employer who asks for a right to work law, a hundred talk about energy prices, and skilled trades, and tax rates, and trade.
After all, only 15% of private sector workers in Ontario are unionized today. Most of them aren’t getting ahead, but neither are the 85% that are non-union.
This “right to work” issue just doesn’t have the scope or the power to fix the issues that are threatening 100% of the manufacturing jobs in Ontario. So if we’re elected, we’re not going to do it – we’re not going to change the so-called “Rand Formula”. Our agenda is a lot bigger, and a lot more ambitious, than that.Here is Hudak’s full speech.

These comments mirror exactly what I wrote here [Repealing the Rand Formula Might Weaken Unions, But It Won’t Create Jobs], right down to the point that only 15% of the private sector is unionized, and that a tiny law on how unions collect dues won’t affect the landscape of manufacturing industry in Canada. Maybe my piece should have been cited 🙂
Yet a mystery remains. As is often the case, I have no idea what Hudak is actually saying. It has never been clear to me what the Tories actually intended to do with labour law if elected. They produced a policy paper last year that included a lot of vague talk about ending ‘forced unionism’, but that was all political spin. There were no details of what a Tory law would actually do. Details matter greatly on this stuff. There was no specific mention of ‘right to work’ in the Tory platform, although the so-called “evidence” the Tories used to back their argument compared differences between ‘right to work’ states and non-‘right to work’ states. This suggested that they were indeed looking at ‘right to work’ laws; otherwise, why direct the reader to stats about states with ‘right to work’ laws?Professor Brian Langille (U of T Law) and clever U of T law student Joshua Mandryk wrote a paper recently arguing that the Tories’ plan was not to adopt US style right to work laws, which prohibit collective agreements clauses requiring workers to join unions or to pay union dues to unions. They assumed that the real plan was to follow the model set out in renegade MPP Randy Hillier’s private member’s Bill 64, which has the typical Tory double-speak language,Defending Employees’ Rights Act. That Bill was mostly ignored because Hillier is always introducing private members bills that go nowhere, and he rarely speaks for the party. Hillier’s Bill is far more sweeping than the typical American ‘right to work’ laws. It would allow workers to opt out altogether from a collective agreement, thereby ending the twin core principles of the Wagner model of labour legislation: majoritism and union exclusivity. It creates a weird, untested libertarian hybrid model based on pieces plucked here and there from various national models around the world. It would place Ontario on its own little experimental island, with a system unlike any other model in the world.
As Langille and Mandryk explain, this would inject into Ontario’s labour market widespread uncertainty, conflict, confusion, and almost certainly produce a wide range of unexpected consequences. It’s hard to imagine why employers or a government trying to stabilize the economy would want this uncertainty, beyond a faith-based belief that when the smoke eventually clears, after years of litigation and conflict, that unions would be weaker than they already are.
From my perspective, I doubted that the Tory plan would actually be to follow Hillier’s wacky model. After all, Hillier is considered a maverick and has had high profile public clashes with Hudak. Why would a party with hopes of running the province let a loose cannon rewrite 60 years of Canadian labour policy? Hillier is no William Lyon Mackenzie King or Franklin D. Roosevelt. But Joshua Mandryk points me to an opt ed by Hillier published in the Windsor Star which I had not seen before. In it, Hillier claims that his policy is in fact Hudak’s policy. he refers to “our” labour policies, meaning his, Hudaks, and the Party’s I presume. Again, who knows what to believe out of Hillier’s mouth. But if that is true, then we are left scratching our head about what Hudak intended this week when he said “we are not going to change the so-called Rand Formula.”
The mystery is this. Hillier’s plan does not actually address the Rand Formula, not directly. In his editorial, Hillier says that he stands by the Rand Formula and agrees with it. He puts words into Rand’s mouth though to suit his objective of cutting of the use of union dues for political purposes. He claims that Rand only said that union dues could be used “for collective bargaining purposes” and not “social policy campaigns”. That is technically true, but only because Rand wasn’t asked about what unions should be able to use dues for. It wasn’t an issue that was argued in the interest arbitration. However, Rand knew that the UAW was very politically involved at the time, and the fact that he did not specifically insist that unions not use dues money for political purposes suggests that the opposite of what Hillier claims, that he did not feel it necessary to police how the union spends its money. There is no reason to believe that Rand would have rejected a democratically elected union from using dues to support social policy causes it’s elected leadership believes advance the interests of its members.However, and this is the big question, if Hudak’s plan was never to “change the Rand Formula”, as Hillier claims, then what meaning can be given to Hudak’s comment this week that he has no intention to “change the Rand Formula”?
Maybe all Hudak was trying to do is adjust the talking point away from Rand and ‘right to work’, but with zero actual change in his labour policy plans. That would make sense of Hudak’s comment that, “Our agenda is a lot bigger, and a lot more ambitious” than changing the Rand Formula. Indeed it is, if that plan is Hillier’s plan to completely rewrite the Canadian labour relations model and make it some weird, untested hybrid of North American, European, and Pan-Pacific models.
On the other hand, if nothing has changed, then it is certainly disingenuous for Hudak to suggest that something has changed. His speech is written to lead the listener to believe that something important has changed. But what? Maybe all he was saying is that he considered American style ‘right to work’ laws at some early point in the policy making process (which I am sure he did), and now he has decided against that particular option. That too could be true, even if everything in Hillier’s master plan remains on the table.
So, I remain unclear if (and what) Tim Hudak’s speech means. It may mean nothing at all, that absolutely nothing has changed in terms of the Tory’s plans for labour law reform. If so, then unions still face the possibility of a complete dismantling of the Wagner Model in exchange for some new weird hybrid model, in which workers can just opt out of a collective agreement altogether (including the dues clause) and bargain individually with their employer. Lots of details about how such a model would work remain uncertain and wouldn’t be known for sure until the Bill was introduced, and even then the effects would not be clear until years later, after lots of litigation, at huge cost to employers, taxpayers, and unions.
But we can be certain that the intention of the law would be undermine collective bargaining and weaken the labour movement. It’s hard to imagine a Tory government would do anything the strengthen collective bargaining, isn’t it?Issues for Discussion

Do you think Tim Hudak intended to signal in his carefully worded speech this week an important change in their plans for labour law reform if elected?

Do you think he is saying that he will not make major reforms to the labour law model if elected?

Or, was he simply confirming that he does not intend to introduce a very specific American style labour law ‘right to work’ law, but that he still intends to fundamentally rewrite Ontario labour law policy?

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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